In the Australian, a common assault can be committed by making a threat that causes another person to fear the use of physical force. For instance, threatening to punch someone in the nose can be a common assault if the victim believes he or she is about to be punched.
While common assault carries a 22-year maximum sentence, making a more serious threat in the ACT can result in a longer sentence. Section 30 of the Crimes Act make it an offence to threaten to kill another person. That offence is punishable by a maximum sentence of 10 years. Threatening to inflict grievous bodily harm violates section 31 of the Crimes Act. That offence is punishable by a maximum sentence of 5 years.
Threat to kill
The offence of “threat to kill” requires proof that the accused:
- made a threat to another person
- to kill that person
- or any third person
- intending the other person to fear that the threat would be carried out, or
- recklessly disregarding the risk that the other person would fear that the threat would be carried out, and
- the threat is made without lawful excuse and
- under the circumstances, a reasonable person would fear that the threat would be carried out.
Threat to Inflict Grievous Bodily Harm
The offence of “threat to inflict grievous bodily harm” requires proof of the same elements as the offence of “threat to kill,” except that the threat is to inflict grievous bodily harm rather than to kill. Grievous bodily harm is a “really serious” bodily harm. That meaning of “grievous bodily harm” is discussed in more detail in our article on the offence of infliction of grievous bodily harm.
State of Mind
A crime under section 30 or 31 must be committed with an intent to cause another person to fear that the accused will commit the threatened act. Saying “I will kill you” as a joke, with no expectation that the listener will take it seriously, does not violate the law.
On the other hand, even if the accused does not mean to cause the listener to fear that the threatened act will be carried out, the accused can be found guilty if the threat was made recklessly. A threat is reckless if the accused should know or foresee that the listener will probably believe the threatened action will occur but makes the threat anyway without regard to that consequence.
The fear that the alleged victim experiences is measured subjectively and objectively. Subjectively, the alleged victim must truly experience fear. Objectively, the crime is committed only if a reasonable person would feel fear under the same circumstances. Thus, if a threat to kill is made on the telephone by someone who lives thousands of miles away and has no ability to carry out the threat, no reasonable person would fear the threat. The threat is therefore not a criminal threat even if the person to whom it was made is unusually sensitive and feels fear after hearing the threat.
Under some circumstances, it may be lawful to make a threat. A person who is being attacked with a weapon, for instance, may be entitled to threaten the use of deadly force to repel the attack.